dissenting.
The majority’s decision is wrong because it fails to follow precedent. It is also unfair because it will permit an employer to return an injured employee to work, fire the employee, and thereby eliminate the employee’s entitlement to compensation. The majority does not even analyze whether it was proper to fire the claimant; apparently, the grounds for firing are irrelevant. This decision can lead to the gaming of the workers’ compensation system for the purpose of ending payment of benefits to employees with compensable injuries. This result is contrary to “the major and controlling purpose of workers’ compensation,” which is “to pay timely tempoi’ary and permanent disability benefits to all legitimately injured workers that suffer an injury or disease arising out of and in the course of their employment, to pay reasonable and necessary medical expenses resulting therefrom, and then to return the worker to the work force.” Ark.Code Ann. § 11-9-1001 (Repl.2002).
Furthermore, with this opinion, the majority confers grounds for review in the Arkansas Supreme Court, as there are now conflicting decisions in the Arkansas Court of Appeals. Ark. Sup.Ct. R. l-2(e). The majority, without stating its reasons for doing so, Inrejects two established lines of cases: (1) cases providing that on appeal we do not affirm Arkansas Workers’ Compensation Commission cases on grounds not ruled upon by the Commission; (2) cases interpreting Ark.Code Ann. § 11-9-526 (Repl.2002).
First, in its analysis, the Commission cites statutory language that “[i]f any injured employee refuses employment suitable to his or her capacity offered to or procured for him or her, he or she shall not be entitled to any compensation during the continuance of the refusal, unless in the opinion of the Workers’ Compensation Commission, the refusal is justifiable.” Ark.Code Ann. § 11-9-526. (Emphasis added.) The Commission, relying on that statutory language, then “finds that the claimant unjustifiably refused employment suitable to her capacity and offered by” her employer. (Emphasis added.) The Commission then concludes that the “record demonstrates that the claimant unjustifiably refused employment suitable to her capacity offered to her by” her employer. (Emphasis added.) Thus, it is apparent that the Commission relied on section 11-9-526 in making its decision.
The majority, in affirming the case, relies, not on section 11-9-526, but instead another statute, as well as cases citing the statute. It states as follows:
Wheeler Construction [Company v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001)], addressed section 11-9-521(a), which provides that an employee with a scheduled injury is to receive TTD benefits during his healing period or until he returns to work. Here, the parties stipulated that appellant had a scheduled injury, and appellant had returned to work prior to the dates she requests TTD benefits. She was subsequently fired for insubordination, which was unrelated to her compensable injury as determined by the Commission. Whether she was within her healing period ligis of no consequence because she had returned to work first. See Ark. Code Ann. § ll-9-521(a). Furthermore, Superior Industries [v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000) ], is limited to its facts and did not involve section 11-9-521, which distinguishes it from the instant matter. See Tyson Poultry, Inc. v. Narvaiz, 2010 Ark. App. 842, 2010 WL 5132119.
In further support of its decision, the majority relies on Roark v. Pocahontas Nursing & Rehabilitation, 95 Ark. App. 176, 235 S.W.3d 527 (2006), where, according to the majority, the “claimant was injured and sought benefits under Arkansas Code Annotated section 11-9-505 (Repl.2002),” and Mackey v. Cobb Vantress, Inc., 2011 Ark. App. 88, 2011 WL 386992, which also cites sections 11-9-505 and 11-9-521.
The error the majority makes in affirming on the basis of sections 11-9-505 and 11-9-521 and the cases citing those statutes is that this was not the basis of the Commission’s ruling. Rather, the Commission — clearly and specifically — relied on section 11-9-526. It is this court’s “duty to review the decision of the Commission to determine whether it is supported by the facts found by the Commission.” Cook v. Aluminum Co. of Am., 35 Ark. App. 16, 20, 811 S.W.2d 329, 332 (1991). Further, in “appeals from the Commission, we cannot indulge the presumption used in appeals from trial courts ... that even if the court states the wrong reason, we will affirm if the judgment is correct.” Id.; see Pulaski County Special Sch. Dist. v. Stewart, 2010 Ark. App. 487, 375 S.W.3d 758.
The Commission specifically made findings based on section 11-9-526, not sections 11-9-505 or 11-9-521. It is our duty to review the Commission’s findings to determine whether they are supported by the facts found by the Commission. But the majority, relying 11son the “right result, wrong reason” theory, instead affirms on other grounds. Having done so, the majority contravenes a longstanding line of precedent. Thus, there are now conflicting decisions in the Arkansas Court of Appeals.
Second, the majority fails to realize that there are cases interpreting section 11 — 9— 526. In Superior Industries v. Thomaston, 72 Ark. App. 7, 32 S.W.3d 52 (2000), the employer argued by analogy that since an employee could be denied disability benefits when the employer provides suitable employment and the employee refuses it, then the employee should also be disqualified when his employment was terminated for misconduct. Id. at 11, 32 S.W.3d at 54. This court rejected that argument. Noting that there was no statutory basis for the employer’s argument, the court instead held that an employee was entitled to benefits where the employee did not refuse employment but instead accepted the employment and was later terminated not by his own choice but at the option of the employer. Id.
This court revisited Superior Industries in Tyson Poultry, Inc. v. Narvaiz, 2010 Ark. App. 842, 2010 WL 5132119. In Nar-vaiz, the court held that “there can be instances of nonperformance or insubordination by an employee that would support a finding that an employee effectively refused suitable employment by engaging in misconduct intended to provoke his termination.” Narvaiz, at 2. The court then limited the holding of Superior Industries “to its facts” and reversed and remanded for further proceedings. Id.
Under these cases, the proper disposition of this case would be to remand for the Commission to make the findings required by Narvaiz. In Narvaiz, this court concluded that |14the essential question was whether the claimant effectively refused suitable employment by engaging in misconduct intended to provoke his termination. The Commission — in an opinion it handed down before this court handed down Narvaiz — did not, as required by Narvaiz, make any findings regarding whether the claimant engaged in this conduct with the intent to provoke her termination. Thus, the Commission relied on section 11-9-526 in making its decision but did not make specific findings on an issue that this court requires when considering section 11-9-526 in the context of an employee who returned to work but was subsequently terminated. When the Commission fails to make required findings, it is appropriate to reverse and remand the case for the Commission to make such findings. See, e.g., Second Injury Fund v. Tharp, 2010 Ark. App. 828, 2010 WL 4978596. In affirming, the majority has reached a decision inconsistent with Superior Industries and Narvaiz, resulting in conflicting decisions in the Arkansas Court of Appeals.
Thus, I respectfully dissent.
ROBBINS, J., joins.